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Kershaw v. Workforce Safety and Ins.

Supreme Court of North Dakota

October 22, 2013

Ron KERSHAW, Appellee
v.
WORKFORCE SAFETY AND INSURANCE, Appellant.

Page 430

Dean J. Haas, Bismarck, ND, for appellee.

Douglas W. Gigler, Special Assistant Attorney General, Fargo, ND, for appellant.

CROTHERS, Justice.

[¶ 1] Workforce Safety and Insurance (" WSI" ) appeals from a district court's judgment reversing an administrative law judge's (" ALJ" ) order, which affirmed WSI's order denying Ronald Kershaw's work injury claim. We conclude the district court erred in reversing the administrative law judge's order. We reverse and reinstate the ALJ's decision.

I

[¶ 2] Kershaw started working on the plow line assembly at the Bismarck Bobcat plant in 1975. He soon switched to welding and continued in that capacity until the Bismarck plant closed on December 31, 2009. Kershaw started working on the cab assembly line at the Gwinner Bobcat plant on March 14, 2010. His duties included using support carts to retrieve cabs from the conveyor line and using a hoist to push the cabs back into position on the conveyor line. Kershaw reported that instead of properly adjusting the height of the cart to work on the lower cab when he got behind, he squatted to perform his duties and that he first noticed pressure in his groin while squatting. Kershaw worked on the cab assembly line until roughly June 2010, when he obtained a welder position on the track line.

[¶ 3] Dr. Paul Jondahl saw Kershaw on October 31, 2010 for a routine blood pressure check. Kershaw complained of groin pain, which he thought might be from drinking Mountain Dew. Dr. Jondahl diagnosed him with a probable right inguinal hernia. Kershaw submitted a first report

Page 431

of injury form to WSI on November 15, 2010. He did not claim a specific injury caused his hernia but listed March 29, 2010 as the injury date. WSI denied Kershaw's claim on December 13, 2010, finding he failed to prove his hernia was a compensable injury.

[¶ 4] Kershaw saw Dr. Jondahl on April 22, 2011, and Dr. Jondahl noted that unlike his previous appointment, Kershaw was there specifically because of a pending WSI claim. Kershaw complained of pain when he went to the bathroom and when he did certain lifting, but did not believe he needed to be restricted at work. Dr. Jondahl referred Kershaw to a surgeon.

[¶ 5] Dr. Derek Kane performed a surgical consult on May 11, 2011. Kershaw told Dr. Kane he first noticed pressure in his right groin in March 2010 and the pressure worsened when lifting heavy objects. Dr. Kane diagnosed a hernia and recommended surgical repair. Dr. Kane also recommended Kershaw not lift more than fifteen pounds. Dr. Kane repaired Kershaw's hernia on June 17, 2011.

[¶ 6] Kershaw asked Dr. Jondahl prior to his surgery to provide an opinion whether his hernia was work-related. Dr. Jondahl responded with a letter on May 23, 2011 that he believed Kershaw's employment likely significantly contributed to the hernia's development, substantially accelerated the hernia's progression and aggravated the hernia's severity.

[¶ 7] The ALJ affirmed WSI's denial of benefits on October 6, 2011, finding no objective medical evidence supported Dr. Jondahl's opinion. Kershaw sought and was granted a reconsideration after arguing that the ALJ substituted her own medical judgment and that she should consider the surgical report of Dr. Kane. WSI obtained an independent medical record review from Dr. Merlin Brown on reconsideration. Dr. Brown opined no evidence connected Kershaw's hernia to his work because no specific activity or injury precipitating the hernia existed and because Kershaw has other significant risk factors including smoking and obesity. The ALJ found that even absent Dr. Brown's opinion, Kershaw failed to establish that his work activities substantially contributed to or worsened his hernia, rather than simply triggering his symptoms. The ALJ affirmed WSI's denial of workers' compensation benefits on reconsideration.

[¶ 8] Kershaw appealed to the district court. The district court reversed the ALJ's decision and adopted Kershaw's proposed memorandum opinion, finding Kershaw presented a prima facie case of ...


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